Category Archives: First Amendment

Below is a statement from F. Vincent Vernuccio, senior fellow for the Mackinac Center for Public Policy and policy advisor for Workers for Opportunity, on the draft of the Take Responsibility for Workers and Families Act, which is expected to be introduced by U.S. House Democrats later today. The act is a counterproposal for the current stimulus package.

Today, House Democrats introduced an over 1,400-page bill loaded with provisions that tie funding to a grab bag of policies that have nothing to do with the coronavirus or helping the economy. The bill is a giveaway to unions and seems to prioritize labor reforms Democrats have failed to pass in Congress. Airlines that take stimulus funding would have to give unions a seat on their board, for example. They would also have to sign away their First Amendment rights and not talk to their employees about unionization. There's even a $15.00 minimum wage mandate for companies seeking relief, for both employees and independent contractors and a bailout of union pension funds.Congress needs to be focused on the health of Americans and limiting the damage the virus is causing.

Negotiations are ongoing about the economic rescue package but the health and economic safety of Americans should not be used as a bargaining chip. The Mackinac Center and Workers for Opportunity believe it should be focused on mitigating the direct effects of the virus on businesses, workers and citizens. To learn more about Workers for Opportunity, a project of the Mackinac Center, visit https://workersforopportunity.org.

Go here to read the rest:
Keep Federal COVID-19 Package Focused on the Virus and Its Effects - Mackinac Center for Public Policy

WEHOville has reached out to West Hollywood City Attorney Mike Jenkins to ask him to instruct City Councilmember John Duran to stop blocking some West Hollywood residents and WEHOville from access to his Facebook account.

In its request on Sunday WEHOville cites a federal court decision in 2017 in Knight v. Trump that Donald Trump, in denying his critics access to his Twitter account @realDonaldTrump, was violating the First Amendment of the Constitution. The U.S. Court of Appeals for the Second Circuit today denied the Trump administrations request for a review of the ruling by New Yorks Second Circuit Southern District Court, meaning it remains in place.

Duran, who is up for re-election on Nov. 3, uses his Facebook account like Trump uses his Twitter account. He posts regularly about city issues, with his posts usually opening with Dear WEHOANS. His Facebook page is followed by 2,587 people. But several residents have said Duran has blocked them from access to his account after they fell into a disagreement. Larry Block, owner of the Block Party store and a candidate in the Nov. 3 City Council race, is one of a few willing to be identified publicly by WEHOville.

Duran has blocked WEHOville from access to his Facebook account following its coverage of allegations that he made sexually inappropriate remarks to young members of the Gay Mens Chorus of Angeles, whose board he once chaired, and used his title of mayor of West Hollywood to solicit sex on Grindr. (Duran has denied the GMCLA allegations). However, Duran does link his posts to a reporter from the Los Angeles Times and to two friends of his, Karen Ocamb of the Los Angeles Blade, and Paulo Murillo of WeHo Times, whose limited coverage of the accusations against Duran by young GMCLA members has been mostly positive. Duran has sometimes mentioned WEHOville in his Facebook posts, but not by name. He most recently described WEHOville as the reckless sensationalistic blog. He also has pushed several WEHOville advertisers to stop, which to date has had on impact on WEHOvilles limited revenue. Local residents who Duran hasnt blocked often copy some of his more controversial statements that they deem newsworthy and forward them to WEHOville for coverage.

In a post on the Knight First Amendment Institutes website, Jameel Jaffer, the lawyer who argued the Knight Institute v. Trump lawsuit brought before the U.S. District Court for New Yorks Southern District in 2017, described the reason behind it and why it applied to the personal social media accounts of public officials

Public officials social media accounts are now among the most significant forums for discussion of government policy, said Jaffer, who is executive director of the institute. This decision will ensure that people arent excluded from these forums simply because of their viewpoints, and that public officials arent insulated from their constituents criticism. The decision will help ensure the integrity and vitality of digital spaces that are increasingly important to our democracy.

Duran has faced other criticism of his Facebook account, where he identifies himself as the inventor of homosexuality. For many months after he gave up his position as mayor in March in response to controversy over his alleged sexual misconduct with young members of the Gay Mens Chorus of Los Angeles, Duran continued to claim that honorary title on social media platforms such as Facebook, Instagram, Twitter, and LinkedIn. Several City Council members and local residents objected to that, one of whom wrote a letter to the City Attorney that resulted in Duran dropping that title from his profiles in July 2019.

Read the original here:
WEHOville Asks John Duran to Stop Blocking It and WeHo Residents on Social Media - WEHOville

COVID-19 does not threaten the lives or security of the vast majority of US citizens, yet the majority are the primary target of the draconian actions by state and local governments across this nation; not for any crime they committed or for any threat to the rule of law, but because of their human nature.

No US citizen, except those who have taken an oath otherwise, can be compelled by law or force, or be coerced into assisting others, even if the others are endangered to the point of death. The right to conscience is sovereign.

Every US citizen has a First Amendment right to peaceful assembly.

Every US citizen has the right to engage in legal commerce.

So, all government-enforced curfews, quarantines, isolations, business closings, and all acts of government to restrict the movements and activities of free Americans or to suppress our constitutional rights are null and void. And the silence from US citizens and business owners is terrifying.

The precedent has been set. The people have acquiesced.

Not to a federal attack on their rights, but to state and local attacks. No one should be surprised now when government comes for the rest of our rights. And they will come.

Our Second Amendment right to bear arms will be next on the chopping block, and the clarion call will come loudly from local and state governments, causing a groundswell to take the goal of gun confiscation to the federal level. This will happen. And it will happen before the November election.

No longer empowered with the rights to peaceful assembly and legal commerce, having lost the battle in 50 states to keep our right to bear arms, the people themselves will have made their right to petition the federal government for a redress of grievances no longer worth the ink or feather quill that once proclaimed it. And then, to what sovereign power on earth must the federal government yield?

Our rights gone. COVID-19 still here.

To my East Grand Forks government and to the Minnesota state government, on the usurpation of my God-given rights to keep my own conscience, to peaceful assembly, and to commerce, I declare:

I do not acquiesce.

See the article here:
Letter: Government actions going too far on virus - Grand Forks Herald

Contents

The First Amendment to the U.S. Constitution protects the freedom of speech, religion and the press. It also protects the right to peaceful protest and to petition the government. The amendment was adopted in 1791 along with nine other amendments that make up the Bill of Rights a written document protecting civil liberties under U.S. law. The meaning of the First Amendment has been the subject of continuing interpretation and dispute over the years. Landmark Supreme Court cases have dealt with the right of citizens to protest U.S. involvement in foreign wars, flag burning and the publication of classified government documents.

During the summer of 1787, a group of politicians, including James Madison and Alexander Hamilton, gathered in Philadelphia to draft a new U.S. Constitution.

Antifederalists, led by the first governor of Virginia, Patrick Henry, opposed the ratification of the Constitution. They felt the new constitution gave the federal government too much power at the expense of the states. They further argued that the Constitution lacked protections for peoples individual rights.

The debate over whether to ratify the Constitution in several states hinged on the adoption of a Bill of Rights that would safeguard basic civil rights under the law. Fearing defeat, pro-constitution politicians, called Federalists, promised a concession to the antifederalists a Bill of Rights.

James Madison drafted most of the Bill of Rights. Madison was a Virginia representative who would later become the fourth president of the United States. He created the Bill of Rights during the 1st United States Congress, which met from 1789 to 1791 the first two years that President George Washington was in office.

The Bill of Rights, which was introduced to Congress in 1789 and adopted on December 15, 1791, includes the first ten amendments to the U.S. Constitution.

The First Amendment text reads:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

While the First Amendment protected freedoms of speech, religion, press, assembly and petition, subsequent amendments under the Bill of Rights dealt with the protection of other American values including the Second Amendment right to bear arms and the Sixth Amendment right to a trial by jury.

The First Amendment guarantees freedom of speech. Freedom of speech gives Americans the right to express themselves without having to worry about government interference. Its the most basic component of freedom of expression.

The U.S. Supreme Court often has struggled to determine what types of speech is protected. Legally, material labeled as obscene has historically been excluded from First Amendment protection, for example, but deciding what qualifies as obscene has been problematic. Speech provoking actions that would harm otherstrue incitement and/or threatsis also not protected, but again determining what words have qualified as true incitement has been decided on a case-by-case basis.

This freedom is similar to freedom of speech, in that it allows people to express themselves through publication.

There are certain limits to freedom of the press. False or defamatory statements called libel arent protected under the First Amendment.

The First Amendment, in guaranteeing freedom of religion, prohibits the government from establishing a state religion and from favoring one religion over any other.

While not explicitly stated, this amendment establishes the long-established separation of church and state.

The First Amendment protects the freedom to peacefully assemble or gather together or associate with a group of people for social, economic, political or religious purposes. It also protects the right to protest the government.

The right to petition can mean signing a petition or even filing a lawsuit against the government.

Here are landmark Supreme Court decisions related to the First Amendment.

Free Speech:

Schenck v. United States, 1919: In this case, the Supreme Court upheld the conviction of Socialist Party activist Charles Schenck after he distributed fliers urging young men to dodge the draft during World War I.

The Schenck decision helped define limits of freedom of speech, creating the clear and present danger standard, explaining when the government is allowed to limit free speech. In this case, the Supreme Court viewed draft resistance as dangerous to national security.

New York Times Co. v. United States, 1971: This landmark Supreme Court case made it possible for The New York Times and Washington Post newspapers to publish the contents of the Pentagon Papers without risk of government censorship.

The Pentagon Papers were a top-secret Department of Defense study of U.S. political and military involvement in Vietnam from 1945 to 1967. Published portions of the Pentagon Papers revealed that the presidential administrations of Harry Truman, Dwight D. Eisenhower, John F. Kennedy and Lyndon B. Johnson had all misled the public about the degree of U.S. involvement in Vietnam.

Texas v. Johnson, 1990: Gregory Lee Johnson, a youth communist, burned a flag during the 1984 Republican National Convention in Dallas, Texas to protest the administration of President Ronald Reagan.

The Supreme Court reversed a Texas courts decision that Johnson broke the law by desecrating the flag. This Supreme Court Case invalidated statutes in Texas and 47 other states prohibiting flag-burning.

Freedom of the Press:

New York Times Co. v. United States, 1971: This landmark Supreme Court case made it possible for The New York Times and Washington Post newspapers to publish the contents of the Pentagon Papers without risk of government censorship.

The Pentagon Papers were a top-secret Department of Defense study of U.S. political and military involvement in Vietnam from 1945 to 1967. Published portions of the Pentagon Papers revealed that the presidential administrations of Harry Truman, Dwight D. Eisenhower, John F. Kennedy and Lyndon B. Johnson had all misled the public about the degree of U.S. involvement in Vietnam.

Freedom of Religion:

Reynolds v. United States (1878): This Supreme Court case upheld a federal law banning polygamy, testing the limits of religious liberty in America. The Supreme Court ruled that the First Amendment forbids government from regulating belief but not from actions such as marriage.

Braunfeld v. Brown (1961): The Supreme Court upheld a Pennsylvania law requiring stores to close on Sundays, even though Orthodox Jews argued the law was unfair to them since their religion required them to close their stores on Saturdays as well.

Sherbert v. Verner (1963): The Supreme Court ruled that states could not require a person to abandon their religious beliefs in order to receive benefits. In this case, Adell Sherbert, a Seventh-day Adventist, worked in a textile mill. When her employer switched from a five-day to six-day workweek, she was fired for refusing to work on Saturdays. When she applied for unemployment compensation, a South Carolina court denied her claim.

Lemon v. Kurtzman (1971): This Supreme Court decision struck down a Pennsylvania law allowing the state to reimburse Catholic schools for the salaries of teachers who taught in those schools. This Supreme Court case established the Lemon Test for determining when a state or federal law violates the Establishment Clausethats the part of the First Amendment that prohibits the government from declaring or financially supporting a state religion.

Ten Commandments Cases (2005): In 2005, the Supreme Court came to seemingly contradictory decisions in two cases involving the display of the Ten Commandments on public property. In the first case, Van Orden v. Perry, the Supreme Court ruled that the display of a six-foot Ten Commandments monument at the Texas State Capital was constitutional. In McCreary County v. ACLU, the U.S. Supreme Court ruled that two large, framed copies of the Ten Commandments in Kentucky courthouses violated the First Amendment.

Right to Assemble & Right to Petition:

NAACP v. Alabama (1958): When Alabama Circuit Court ordered the NAACP to stop doing business in the state and subpoenaed the NAACP for records including their membership list, the NAACP brought the matter to the Supreme Court. The Court ruled in favor of the NAACP, which Justice John Marshall Harlan II writing: This Court has recognized the vital relationship between freedom to associate and privacy in one's associations.

Edwards v. South Carolina (1962): On March 2, 1961, 187 black students marched from Zion Baptist Church to the South Carolina State House, where they were arrested and convicted of breaching the peace. The Supreme Court ruled in an 8-1 decision to reverse the convictions, arguing that the state infringed on the free speech, free assembly, and freedom to petition of the students.

The Bill of Rights; White House.History of the First Amendment; The University of Tennessee, Knoxville.Schenck v. United States; C-Span.

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First Amendment - Rights, U.S. Constitution & Freedoms ...

By Jim ZacharyPresidentGeorgia First Amendment Foundationhttp://sunshineweek.org/

The media is most definitely not your enemy.

Far from being the enemy of the people, day in and day out we take our role as the Fourth Estate seriously and work hard to protect your right to know, making public records requests and attending public meetings to keep you informed.

Why?

Because we believe all the business government does, whether in open public meetings or behind closed doors, is your business.

We believe every last penny government spends is your money.

We believe it is your right to know every transaction, every decision, every expenditure and every deliberation of your government.

Whether talking about the White House, the statehouse or the county courthouse, all the documents held in government halls belong to the people, and all the business conducted by our governors is public business.

We believe our government your government can only be of, by and for the people when it is out in front of the people. Primary to our republic is the understanding that we are the government and the government is us. The only powers held by federal, state or local government are the powers we give.

So, whether it is Congress, the states General Assembly, county commission, city council or the board of education, it is your right to know all of the peoples business.

When you attend local city, county or school board meetings, ask questions and hold elected representatives accountable, you are not minding their business, you are minding your own business.

When you make a public records request, you are not asking local records custodians to give you something that just belongs to them or the office where they work. You are simply asking for your own documents.

The Bill of Rights, specifically the First Amendment which guarantees the freedom of speech and the freedom of press, is not intended to protect the media per se. Rather, the founders built a hedge of protection around the media because the media guards and fights for the publics right to know.

According to a Brookings Institution report, more than 2,000 newspapers across the country ceased publication in the last 15 years or so. The shuttering of newspapers presents a very real and present danger to our most basic freedoms. Thats why communities should support their local newspapers, through subscriptions and advertising, now more than ever before.

Journalists keep an eye on government, shine the light on its actions, fight the good fight for access to documents and meetings, champion transparency and defend the First Amendment because of a core belief in your basic, fundamental rights principally, your right to know.

CNHI Deputy National Editor Jim Zachary is the president of the Georgia First Amendment Foundation.

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Sunshine Week: It's always your right to know - The Highland County Press

No, professors, the First Amendment does not protect you from receiving a warning from your universityaboutviolating its nondiscrimination policies when you talk to or about your transgender students in discriminatory ways in class.

Nicholas Meriwether, professor of philosophy at Shawnee State University in Ohio,had used sir while responding in his Fall 2018 political philosophy class to a transgender woman student. After class that day, the student asked Dr. Meriwether to refer to her as a woman and use feminine pronouns (she, her) or titles (Miss, Ms.) when addressing or talking about her.He refused. Instead, he resorted to referring tothe student by her last name only, while continuing to address other students in class as Mr. and Ms. followed by their last name.

Nicholas Meriwether

The student filed a complaint with the university, which investigated and presented Dr. Meriwether with a written warning to not violate the schools nondiscrimination policies. (See previous post on this here.)

Dr. Meriwether then sued Shawnee State University, arguing that the warning had violated hisConstitutional rights. From the initial decision:

He is a professing evangelical Christian and member of the Presbyterian Church of America with sincerely-held religious beliefs about gender, and he does not believe that an individuals gender can be changed after the moment of conception He objects to communicating what he believes to be a University mandated ideological message regarding gender identity that he does not believe and which he believes contradicts (and would force him to violate) his sincerely held religious beliefs.

Meriwether sought a judgment that the schools nondiscrimination policies and practices violated his First and Fourteenth Amendment rights. The Shawnee State University officials named in the lawsuit asked the court to dismiss it.

This past September the court did dismiss the case, making use of various precedents, including the judgments that Universities may sanction professors whose pedagogical attitudes and teaching methods do not conform to institutional standards and that although public universities may not force professors to endorse or eschew specific viewpoints, the First Amendment does not bar a public university from requiring that its faculty treat each other and their students with civility.

Meriwether appealed to the district court, which rejected his appeallast month. Meriwether has now filed a further appeal.

Go here to read the rest:
The First Amendment, a Philosophy Professor, and Pronouns - Daily Nous

John Elwood briefly reviews Mondays relists

This weeks installment of Relist Watch will be unlike any one youve ever read. Most of them read like they were written by some unshaven lout in his basement wearing sweatpants. By contrast, this one actually was written by an unshaven lout in his basement wearing sweatpants. So while this post may be bad as ever, at least its authentic.

Practically nothing has happened since our last installment. This week, the Supreme Court found its replacement for Mathena v. Malvo, 18-217, involving a question about whether the Eighth Amendment requires a judge imposing sentence to make a finding that a juvenile is permanently incorrigible before imposing a sentence of life without parole. All the other relisted cases presenting the same issue are now on hold. And I was half right about Pittman v. Harris, 19-466, a first-time relist involving the proper summary judgment standard in a qualified immunity case. I was right that the court would not grant review in the case. But I was wrong that some sort of opinion would be forthcoming: Instead, the court noted in just a single sentence that Justice Samuel Alito would grant the petition for a writ of certiorari. All the rest of last weeks relists are back and I suspect well be seeing opinions in some of them soon.

Two new relists this week. First up is Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, 18-1455. If its facts read like a law-school exam hypothetical, its because they already have been used for that very purpose. WMATA, the entity responsible for running the capital citys worldclass transit system, has a number of advertising guidelines. Guideline 12 prohibits [a]dvertisements that promote or oppose any religion, religious practice or belief. As Christmas 2017 was approaching, the Archdiocese of Washington sought to advertise its Find the Perfect Gift campaign on the exterior of the buses WMATA operated. Its proposed advertisement depicted the silhouette of three shepherds and sheep accompanied by the message: Find the Perfect Gift. Although WMATA accepts a wide variety of advertisements, including secular advertisements addressing Christmas and charitable giving, it refused to run the Archdioceses advertisement because of its policy prohibiting advertisements that promote or oppose religion or reflect a religious perspective. Then-Judge Brett Kavanaugh was on the panel of the U.S. Court of Appeals for the D.C. Circuit that heard argument, but he moved to his current position soon afterwards. The remaining two judges then upheld WMATAs policy, holding that it was a constitutional viewpoint-neutral restriction that was consistent with the purposes of the nonpublic forum.

The Supreme Court first considered this case at the so-called long conference at the end of the summer recess on October 1. I presume the court was holding it perhaps for Espinoza v. Montana Department of Revenue, which raises another free exercise question. On February 19, it released the hold and set the case for consideration at the March 6 conference, and then relisted it for the upcoming March 20 conference. The case pits two former solicitors general against each other, with Paul Clement for the Archdiocese and Don Verrilli for WMATA. But because Kavanaugh will almost certainly recuse himself from further participation, there is a prospect of the courts dividing 4-4 on the case.

United States v. California, 19-532, should be familiar to inveterate time-wasters, because it was featured in Relist Watch in mid-January. That case concerns several California laws enacted in 2017 that generally prohibit state law-enforcement officials and various employers from providing federal immigration authorities with release dates and other information about individuals subject to federal immigration enforcement, and also restrict the transfer of people in state custody to federal immigration custody. The federal government sued California, arguing that those statutes are preempted by federal law or barred by intergovernmental immunity. The district court enjoined a couple of provisions from going into effect (prohibiting employers from consenting to federal immigration inspections and limiting employers ability to reverify employees work authorizations), but it allowed virtually all to go into force. The U.S. Court of Appeals for the 9th Circuit affirmed the district courts refusal to enjoin most provisions, but vacated its failure to enjoin one provision. The government seeks review, arguing that certain provisions prohibiting state officials from providing information to, or transferring individuals to the feds are preempted. The court briefly held this case after the January 17 conference, but released that hold on March 3. And now the case is relisted.

Thats all this week. Now to get back to pressing business. Everyone stay safe!

New Relists

Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, 18-1455

Issues: (1) Whether the Washington Metropolitan Transit Authoritys policy of refusing to accept advertisements that promote or oppose religion or reflect a religious perspective violates the First Amendment; and (2) whether that discrimination against religious speech violates the Religious Freedom Restoration Act.

(relisted after the March 6 conference)

United States v. California, 19-532

Issue: Whether provisions of California law that, with certain limited exceptions, prohibit state law-enforcement officials from providing federal immigration authorities with release dates and other information about individuals subject to federal immigration enforcement, and restrict the transfer of aliens in state custody to federal immigration custody, are preempted by federal law or barred by intergovernmental immunity.

(relisted after the March 6 conference)

Returning Relists

Andrus v. Texas, 18-9674

Issue: Whether the standard for assessing ineffective assistance of counsel claims, announced inStrickland v. Washington, fails to protect the Sixth Amendment right to a fair trial and the 14th Amendment right to due process when, in death-penalty cases involving flagrantly deficient performance, courts can deny relief following a truncated no prejudice analysis that does not account for the evidence amassed in a habeas proceeding and relies on a trial record shaped by trial counsels ineffective representation.

(rescheduled before the November 1, 2019, and November 8, 2019, conferences; relisted after the November 15, 2019, November 22, 2019, December 6, 2019, December 13, 2019, January 10, January 17, January 24, February 21, February 28 and March 6 conferences)

Cannon v. Seay, 19-311

Issues: (1) Whether, in review of a state decision under28 U.S.C. 2241, when a federal appellate court must determine if double-jeopardy protection bars retrial after a mistrial is granted over a defendants objection based upon the absence of a critical prosecution witness, the required strict scrutiny applied to the legal determination of manifest necessity constrains in equal or greater measure the deference universally accorded a trial courts fact-finding; and (2) whether, in granting relief under 28 U.S.C. 2241, the U.S. Court of Appeals for the 4th Circuit egregiously failed to apply clearly established federal law as determined by the Supreme Court inArizona v. Washingtonand accord deference to the state courts ruling finding manifest necessity for mistrial when it resolved that omission of a reference to consideration of alternatives in the courts oral ruling made the ruling fatally insufficient, even though the record shows the state court did not act rashly in granting a mistrial, but pursued a cautious approach that included suspending the trial to allow a search for the missing witness prior to considering and granting the states mistrial motion.

(relisted after the January 10, January 17, January 24, February 21, February 28 and March 6 conferences)

The Rams Football Company, LLC v. St. Louis Regional Convention and Sports Complex Authority, 19-672

Issue: Whether the Federal Arbitration Act permits a court to refuse to enforce the terms of an arbitration agreement assigning questions of arbitrability to the arbitrator if those terms would be enforceable under ordinary state-law contract principles in a non-arbitration context.

(relisted after the January 24 January 24, February 21, February 28 and March 6 conferences)

VF Jeanswear LP v. Equal Employment Opportunity Commission, 19-446

Issues: (1) Whether Title VII authorizes the Equal Employment Opportunity Commission to continue investigating a charge of discrimination after the commission issues the charging party a right-to-sue notice and after the charging party pursues private litigation; and (2) whether the EEOC can rely on a charge of discrimination to demand information from an employer about acts or practices not affecting the charging party.

(relisted after the February 21, February 28 and March 6 conferences)

Davis v. United States, 19-5421

Issue: Whether factual error is categorically immune from plain error review.

(rescheduled before the January 10, 2020 conference; relisted after the February 21, February 28 and March 6 conferences)

Bazan v. United States, 19-6113

Issue: Whether factual error is categorically immune from plain error review.

(relisted after the February 21, February 28 and March 6 conferences)

Bazan v. United States, 19-6431

Issue: Whether factual error is categorically immune from plain error review.

(relisted after the February 21, February 28 and March 6 conferences)

Halprin v. Davis, 19-6156

Issue: Whether Randy Halprins second federal petition raising a judicial bias claim is second or successive under28 U.S.C. 2244(b)(2)if the judge concealed his bias by failing to recuse himself, and the public exposure of his bigotry after the conclusion of Halprins initial habeas proceedings in the district court created Halprins first fair opportunity to present his claim.

(relisted after the February 21, February 28 and March 6 conferences)

Avery v. United States, 19-633

Issue: Whether 28 U.S.C. 2244(b)(1) applies to federal prisoners seeking relief under 28 U.S.C. 2255.

(relisted after the February 28 and March 6 conferences)

Posted in Archdiocese of Washington v. Washington Metropolitan Area Transit Authority, U.S. v. California, Andrus v. Texas, Cannon v. Seay, The Rams Football Company, LLC v. St. Louis Regional Convention and Sports Complex Authority, Avery v. U.S., VF Jeanswear LP v. Equal Employment Opportunity Commission, Davis v. U.S., Bazan v. U.S., Bazan v. U.S., Halprin v. Davis, Jones v. Mississippi, Featured, Cases in the Pipeline

Recommended Citation: John Elwood, Relist Watch in the Time of Cholera, SCOTUSblog (Mar. 19, 2020, 9:22 AM), https://www.scotusblog.com/2020/03/relist-watch-in-the-time-of-cholera/

Originally posted here:
Relist Watch in the Time of Cholera - SCOTUSblog

Everyone should obey the law. Obeying the law protects peace, public order, and good health.

The First Amendments Religion Clauses were designed to protect such a legal system. They aimed to keep a diverse population at peace by giving them one shared system of law. That system sensibly arose from the terrible Wars of Religion, which are the main historical background to religious freedom in the United States. Religions always disagree, and frequently dispute their disagreements. Therefore, the common law cannot be religion-based, and everyone must follow it. Professor Ellis West made this point in his book, The Free Exercise of Religion in America: Its Original Constitutional Meaning, when he concluded it is highly unlikely that early Americans believed that the free exercise of religion entails a right to religion-based exemptions from civil laws that the government has a right to pass (p. 305).

Occasionally the Supreme Court understands this point, as it did in Employment Division v. Smith, the sensible, yet controversial, case that ruled everyone must obey the law, without judicially-concocted religious exceptions. Smith is frequently criticized, and may be overruled soon. Post-Smith, moreover, Congress and many state legislatures granted legislative exemptions to religions through their federal and state Religious Freedom Restoration Acts (RFRAs).

It was the federal RFRA, not the Free Exercise Clause, that granted employers the right to refuse contraceptive insurance to their employees in Burwell v. Hobby Lobby. Even though using contraceptives is a constitutional right, and even though the government was trying to pass universal health care coverage in the Affordable Care Act, i.e., health care coverage that would cover everyone, RFRAs religious exemption gave many employers the right to disobey health law and set their own no-contraception standard. President Donald Trump has expanded the exemption so that even more employers can deny their employees the insurance coverage. The employers no longer have a responsibility to report their denials to the government or the insurance company. Trump also threatened to cut off all federal health aid to California because it has a law that requires insurance companies to cover constitutionally-protected abortions.

Trump has also enlarged medical conscience against patients rights. Medical personnel already enjoyed extensive conscience clause protection, a legal right given to protect them from providing any service they do not want to provide. Trumps new religious freedoms policies allow medical personnel to refuse patients for any reason of conscience. The medical conscience trumps the health of women, LGBTQIs, people of color, minorities, the poor, or anyone the doctors or nurses conscience dislikes. The more appropriate, follow-the-law, standard would be to recognize that health law is supposed to protect patients health first, not consciences of medical providers.

LGBTQIs are a special object of discrimination. The dissenting justices in the gay marriage case, Obergefell v. Hodges, urged the protection of anti-gay conscience. Next term, the Supreme Court will hear a case, Fulton v. Philadelphia, in which Philadelphia refused to fund Catholic adoption agencies because they discriminated against same-sex couples in the placement of children. Philadelphia correctly wants the same antidiscrimination laws to apply to everyone. The religious freedom asked for in the case gives Catholics the possibility of winning a case in which Smith is overturned, and they earn a right to set the law their own way instead of obeying the law as it is.

Vaccines are needed by everyone in order to preserve herd immunity and protect each other from disease. States are learning what happens if they hand out religious or philosophical exemptions, letting people be vaccine-exempt for any personal reason. Outbreaks of measles in California, New York and other states have taught that everyone needs to be vaccinated. States have been changing their laws to require vaccination, realizing only everyones obedience to the health laws can protect everyone else.

For many years, religious sex abusers hid their abuse under the argument that the First Amendment protected them from the law. That claim allowed them to hide their abusers records, and to protect the abusers instead of the abused. Gradually the courts learned in many abuse cases that religious people of any status need to be sued and to be required to obey the laws that protect children. Unfortunately, not all states allow these lawsuits to proceed. There is still the wrong idea that unlawful religions are protected from court scrutiny by the First Amendment.

Due to numerous court decisions from both state and federal courts, the First Amendment now leaves religious organizations free to discriminate against anyone they call a minister. According to the Court, the right to discriminate on the basis of age, disabilities, gender, sexual orientation, race and all the other antidiscrimination laws belongs to religions. This rule is called the ministerial exception, which is an affirmative defense. It generally protects employers instead of employees because the case never gets to trial if the affirmative defense is met.

The Ninth Circuit recently ruled, correctly, that a Catholic laywoman and a non-Catholic woman were teachers, not ministers, and so able to sue their employers for disabilities and age discrimination. The Supreme Court was originally scheduled to hear oral argument in the two cases, St. James School v. Biel and Our Lady of Guadalupe School v. Morrissey-Berru, on April 1, but due to the COVID-19 pandemic, has postponed argument. We wait to see if the Court will affirm the Ninth Circuit, or will instead expand the ability of employers to turn their religious employees into ministers who can never sue for wrongdoing.

It is hard to imagine a peaceful United States that allows religions a constitutional or statutory right to discriminate against all types of people. A system that, at the same time, allows them tax benefits. Church status with the IRS gives churches tremendous advantages, allowing churches to keep private much information about them. A whistleblower recently complained that the privacy of the tax laws allowed the Latter-day Saints to make $100 billion in a supposedly tax-exempt investment fund requiring the funds to be distributed.

Bob Jones should have set that issue straight. In 1983, the Supreme Court, 8-1, upheld the IRSs decision to revoke Bob Jones Universitys tax-exempt status because the school discriminated on the basis of race. Justice Samuel Alito asked in the oral argument at Obergefell if Bob Jones would apply to cases involving sexual orientation discrimination:

Well, in the Bob Jones case, the Court held that a college was not entitled to taxexempt status if it opposed interracial marriage or interracial dating. So would the same apply to a university or a college if it opposed same-sex marriage?

The answer to that question should be yes, but the IRS has not yet moved to make it so. The non-exempt rule should be applied to all organizations that violate antidiscrimination laws. They should not have a constitutional right to break the laws and be tax exempt while they do it.

Imagine what that a law-obeying country would look like. Everyone would obey the laws banning racial discrimination. All employers would provide contraceptive insurance. All employers and stores would respect LGBTQI rights. No law would protect child abuse or abusers. Everyone would be vaccinated to protect their own and everyone elses health. Conscience clauses would not provide medical providers a reason to deny sterilization, contraception, abortion, the right to die, or any other medical procedure to any patient.

Thats what would happen if everyone would follow the law.

Link:
Obey the Law - Justia Verdict

The transparency of today, as good or as bad as it is, is not the transparency of tomorrow.

Disclosure of online advertising, micro-targeting, and true identity issues of election-advertising spenders frame key new areas of concern for democracy advocates and for journalists because its difficult to hold elected officials accountable without robust disclosure of whos behind those candidates political campaigns and the issues they advocate for or against.

Follow the money, the decades-old adage born from the Watergate scandal of the Nixon administration, is no simple task if the money is hidden behind layer upon layer of deception. Its a type of deception practiced by Russian oligarchs to protect their standing with elected leaders, and their billions of rubles. Its a type of deception practiced by dictators to retain power even when their people are starving and protesting. And its a type of deception practiced by unscrupulous candidates, lawmakers, and political money-launderers in this country to gain and to hold on to power.

Nixon wasnt the first to practice this deception, and he wont be the last unless we the people make a change. That means:

Ask candidates to make disclosure and transparency a priority in their campaigns. And practice what they preach. Scholarly analyses show that voters elect candidates who do so.

Call on elected lawmakers to properly fund and staff disclosure agencies tasked with ensuring candidates run campaigns within the legal boundaries, file their campaign finance reports in a timely manner, and quickly release that information for public eyes. The Federal Election Commission is the dismal example of a disclosure agency that has been neutered by politicians who say theyre against onerous bureaucracy but who really fear accountability.

Support efforts to bring disclosure and accountability into the twenty-first century with technology available to any middle school student. Candidates and committees shouldnt be filing financial reports on paper, but in many states they still do. In fact, the U.S. Senate filed paper reports until just a few years ago.

Demand that candidates acknowledge and denounce deceptive campaign practices and advertising online, in direct mail, and on the television and advocate for best practices for twenty-first century disclosure. States like California, Maryland, and Washington are exploring and implementing new online disclosure rules. Countries in Europe are setting strict standards for online activity and policing them vigorously.

Bring back civic education in schools. Reward high schoolers who sign up to register voters or be election judges. Give them extra credit for knocking on doors for local candidates, stuffing envelopes, or even building a candidates web page and developing social-media outreach.

Those opposed to disclosure and the transparency and accountability that it enables argue that it infringes on their First Amendment rights. But those who respect the First Amendment understand that it is something to be honored and cherished. No good can come of soiling it to win elections with lies and deceptions.

Edwin Bender is executive director and a founding incorporator of the National Institute on Money in State Politics (1999). He emphasizes the need to break down barriers to public disclosure of campaign finance and related information in poor-reporting states, while pushing advances in cross-state issue analyses and web-based data aggregation and dissemination. Prior, he worked as a journalist for 10+ years at newspapers in Montana, Alaska, and Washington.

Link:
Transparency is transforming | Columns - Weatherford Democrat

In 2017, the Electronic Frontier Foundation (EFF) filed a Freedom of Information Act (FOIA) lawsuit looking to force the FBI and the National Institute of Standards and Technology (NIST) to cough up info about Tatt-C (also known as the Tattoo Recognition Challenge): a tattoo recognition program that involves creating an open tattoo database to use in training software to automatically recognize tattoos.

For years, the EFF has been saying that developing algorithms that the FBI and law enforcement can use to identify similar tattoos from images similar to how automated facial recognition systems work raises significant First Amendment questions. The thinking goes like this: you can strip out names and other personally identifiable information (PII) from the tattoo images, but the images themselves often contain PII, such as when they depict loved ones faces, names, birthdates or anniversary dates, for example.

As part of the Tatt-C challenge, participating institutions received a CD-ROM full of images to test the third parties tattoo recognition software. That dataset has 15,000 images, and most were collected from prisoners, who have no say in whether their biometrics are collected and who were unaware of what those images would be used for.

Since 2017, when the EFF used a FOIA lawsuit to get at the names of the participating institutions, its been trying to find out whether the entities realize that theres been no ethical review of the image collection procedure, which is generally required when conducting research with human subjects.

On Tuesday, the EFF presented a scorecard with those institutions responses.

The results: nearly all of the entities that responded confirmed that theyd deleted the data. However, 15 institutions didnt bother to respond, or said You can count us as a non-response to this inquiry, to a letter sent by the EFF in January.

In that letter, the EFF requested that the entities destroy the dataset; conduct an internal review of all research generated using the Tatt-C dataset; and review their policies for training biometric recognition algorithms using images or other biometric data collected from individuals who neither consented to being photographed, nor to the images being used to train algorithms.

Nearly all the entities that responded confirmed that the data had been deleted. But at least one university was still conducting research with the dataset five years later: the University of Campinas (UNICAMP) School of Engineering Computer Engineering in Brazil. The university sent a letter saying that researchers are only required to seek ethics review for human data collected within Brazil. Thus, its researcher would keep working on the tattoo images through the end of year and then would delete them.

UNICAMP also refused to acknowledge that the images contained personal information, the EFF says. The groups take on the matter:

Tattoos are also incredibly personal and often contain specific information and identifiers that could be used to track down a person even if their face and identity have been obscured. For example, even though the names of the inmates were removed from the Tatt-C metadata, the tattoos themselves sometimes contained personal information, such as life-like depictions of loved ones, names, and birth dates that all remain viewable to researchers.

UNICAMP also said that its researcher Prof. Lo Pini Magalhe is adding to the dataset by grabbing images of tattoos from the web: a practice that the EFF noted has increasingly come under fire from Congress in light of the Clearview AI face recognition scandal.

Clearview has been sued for scraping 3 billion faceprints so it can sell its facial recognition technology to law enforcement and other clients; been told to knock it off by Facebook, Google and YouTube; and has lost its entire database of (mostly law enforcement agency) clients to hackers.

Its not that the FBI and NIST didnt at least try to strip PII from the images metadata. Its that they failed to identify PII in the images themselves. In one example, by using image data such as the photo-realistic images of inmates relatives, their names, dates of birth and death, EFF says it was able to identify the individual within minutes with a Google search.

After the EFF raised concerns about the PII in the images, NIST retroactively stripped images containing PII from its dataset. It was too late to strip the PII from the dataset copies it had distributed to third parties, however.

As well, NISTs and the FBIs evaluation of the dataset also failed to consider that the individuals associated with the tattoos could be reidentified when their inked biometrics were combined with other datasets, such as those compiled from Flickr or other social media sites.

The EFF has found a number of cases where the recipients of the dataset have, in fact, identified individuals via their tattoos:

Documents produced in response to our FOIA suit include a presentation showing that researchers at the Fraunhofer Institute of Optronics, System Technologies and Image Exploitation had the ability to match tattoos from websites to a national criminal database. Researchers at Nanyang Technological University used the Flickr API to download thousands of images, which it then used in research that also involved the NIST dataset.

The EFF maintains that tattoos are unique: unlike other biometrics, such as faceprints or fingerprints, theyre an expression of identity. The choice to get a tattoo is a form of speech, it says, whether that means promoting their favorite sports team, celebrating the birth of a child, or a traditional tattoo tied to ones heritage.

That makes this a free-speech issue, the group says:

Its rare for a tattoo not to be an expression of the wearers culture and beliefs. In recognizing the First Amendment right to get a tattoo, and limitations on the government from preventing citizens from expressing this right, the Ninth Circuit Court of Appeals has said, We have little difficulty recognizing that a tattoo is a form of pure expression entitled to full constitutional protection.

In fact, NIST itself has justified the usefulness of tattoo recognition in identifying individuals, saying that the images suggest affiliation to gangs, subcultures, religious or ritualistic beliefs, or political ideology.

Go here to see the original:
NIST shared dataset of tattoos thats been used to identify prisoners - Naked Security